73. Affirmative defense in action against transferee of trust assets or to charge trustee in certain cases; "Notice of Lending." 1. In any action against a person to whom trust assets have been transferred, to recover assets diverted from the trust or to recover damages for the diversion, a transferee named in a "Notice of Lending" filed as provided in subdivision three of this section shall be entitled to show by way of defense that the transfer was made as security for or in consideration of or in repayment of advances made to or on behalf of the trustee in accordance with such notice of lending and that prior to the making of such advances the transferee procured from the trustee the written agreement of the trustee that he will receive the advances and will hold the right to receive such advances as trust funds to be first applied to the payment of trust claims as defined in section seventy-one of this chapter, and that he will apply the same to such payments only, before using any part of such advances for any other purpose. Subject to subdivision four of this section, if such defense is established, the transferee shall be entitled to a credit for the amount of the advances with respect to which it is so established, to the extent that such amount does not exceed the maximum amount specified in the notice of lending filed as provided in subdivision three.
2. In any action in which it is sought to charge a trustee personally with liability by reason of a diversion of trust assets, the trustee shall be entitled to show by way of defense that the transfer constituting the diversion was made to a transferee named in a "Notice of Lending" filed as provided in subdivision three and that the transfer was made as security for or in consideration of or in repayment of advances made to him as trustee or on his behalf as trustee in accordance with such notice of lending, and that such advances were actually applied for a purpose of the trust as stated in subdivision one or subdivision two of section seventy-one of this chapter. Subject to subdivision four of this section, if such defense is established, the trustee shall be entitled to a credit against any personal liability by reason of such transfer, for the amount of the advances with respect to which it is established, to the extent that such amount does not exceed the maximum amount specified in the notice filed as provided in subdivision three.
3. (a) If funds are advanced to or on behalf of a trustee, for the purposes of the trust, either the trustee or the person advancing the funds may file a "Notice of Lending" as provided in this subdivision. In the case of advances to an owner or to a contractor or subcontractor for one or more projects for the improvement of real property including a home improvement, the notice shall be filed in the office of the county clerk of each county where the real property improved or to be improved to which the notice relates is situated. Such clerk shall enter the facts relating to the notice in the "lien docket" or in another book provided by him for such purpose. Each such notice shall be indexed by the name of the trustee to whom or on whose behalf the advances are made. In the case of advances to a contractor or subcontractor for one or more projects involving a public improvement, the notice shall be filed with the head of each department or bureau having charge of construction of an improvement to which the notice relates and with the financial officer of each public corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for each such public improvement.
(b) A notice filed pursuant to this section is effective for the purposes of this section with respect to advances made on the day of filing or subsequently, or made not more than five days before the date of filing. The notice must contain: (1) a statement of the name and address of the person making the advances, (2) a statement of the name and address of the person to whom or on whose behalf they are made, and whether he is owner, contractor or subcontractor, (3) in the case of advances relating to one specific project for the improvement of real property including a home improvement or one specific public improvement, a description, sufficient for identification, of the improvement and of the real property involved for which the advances are made, and in the case of a notice of lending relating to several or undetermined projects for the improvement of real property including a home improvement or for public improvements, a statement of each county wherein the real property is or may be situated, (4) the date of any advance made on or before the date of filing for which the notice is intended to be effective, (5) in the case of a notice of lending relating to several or undetermined projects, the date the notice will terminate, which termination date shall not be more than two years after the date the notice is filed, and (6) the maximum balance of advances outstanding to be permitted by the lender pursuant to the notice. If real property is required to be specifically identified hereunder, the identification shall be sufficient if it includes the name of the record owner and the location of the real estate by street and number and town or city or, if the real estate is in the city of New York, by county, except that if the real estate is in the city of New York or counties of Nassau or Onondaga, where the block system of recording or registering and indexing conveyances is in use, the notice must also specify the block in which the real estate is situated.
(c) A "Notice of Lending" may be continued in effect for advances made beyond the stated termination date by filing within sixty days prior to the termination date a subsequent notice entitled "Second Notice of Lending" or "Third Notice of Lending", which identifies the prior notice to which it relates and otherwise conforms to the requirements of paragraph (b) of subdivision three of this section. The term "Notice of Lending" as used in this section includes any amendments but if any amendment increases the maximum balance of advances outstanding to be permitted by the lender, it is effective as to the increased amount only with respect to advances made not more than five days before the date of filing the amended notice or thereafter.
(d) A "Notice of Assignment" meeting the requirements of subdivision two of section fifteen of this chapter and filed pursuant to subdivision one of said section shall be deemed for all purposes a "Notice of Lending" complying with the requirements of this section.
4. Notwithstanding that the transferee, or the trustee, establishes a defense as provided in subdivision one or subdivision two of this section, he shall be allowed no credit by reason of such defense if it is shown that a written demand by a trust beneficiary for a verified statement of the amount of advances actually made to the trustee was served personally or by registered or certified mail on the transferee, or the trustee as the case may be, and that he failed to comply therewith within ten days after receipt of the demand, provided, that if either the transferee or the trustee complies with a demand so served on him, such compliance shall be sufficient as to the other.
5. Notwithstanding any provision of this chapter or of any other law to the contrary, moneys received pursuant to a notice of lending by an owner, contractor or subcontractor shall be deemed to be trust assets.
Last modified: February 3, 2019